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Defendant, a non-ctizen, pleads guilty to felony. The non-citizen gets a good deal,(probation no jail time) but his attorney does not tell him that he is going to get deported for it. (The state felony that non-citizen plead to is considered an "aggravated felony" under the INA and subject to mandatory deportation.) If the defendant, non-ctizen, knew that he would be deported, he would have taken his chances with the trial instead of pleading guilty.

Some time later ICE initiates removal proceedings and the non citizen is deported. Non-citizen seeks recourse under habeas corpus in order to vacate his criminal conviction, as the attorney did not tell him he is going to be deported.

Padilla v. Commonwealth of Kentucky, 559 U.S. 356 (2010); Lee v. United States, 582 U.S. ___ (2017) These cases instruct that If the defendant(a long term permanent resident) plead guilty to an aggravated felony, the attorney had to tell him that he was going to be deported. If the attorney did, the decision must be vacated if the defendant is willing to go to trial. But, in each of these cases the attorney admitted his wrong.

During habeas proceedings, the attorney submits an affidavit stating, that she did in fact inform the defendant that he is going to get deported. (But, she in fact did not.)

The court believes the attorney, and denies the relief.

What can a non-citizen do to prove that the attorney lied, if it comes down to just his word against hers?

What is the bare minimum proof necessary to overturn the trial courts decision?

Jurisdiction, State of Texas

  • Is it possible to re-post the question, as the negative down votes will prevent people from viewing it? – Ivan Vetcher Sep 27 '18 at 7:27
  • Please make a suggestion on how I can word and phrase my question more clearly. I really need an answer. Thank you – Ivan Vetcher Sep 27 '18 at 9:45
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    Preventing vision of low quality questions is the point of downvotes. Simply reposting the same poor text will earn only more downvotes and closure as a duplicate. This is obviously a request for advice to resolve your specific legal situation, which requires engaging a lawyer of your own. – Nij Sep 27 '18 at 10:59
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    Littering the site with restatements of the same question is not good. While your details may be interesting to some, the essence of your question seems to be very simple, "How can I, as a defendant, convince a court that an attorney is lying to it?" Or maybe, "Why are courts inclined to believe attorneys over felons?" – feetwet Sep 27 '18 at 11:03
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    Instead of deleting and re-posting consider taking advantage of the edit feature to improve the question. Even a closed question can be reopened if the edit corrects the problems that cause the question to get closed. – Jason Aller Sep 27 '18 at 16:22
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Right now - nothing.

The matter has been heard and finalised - you had your opportunity to enter the evidence that supports your assertion, you don’t get another one.

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The "bare minimum necessary to overturn the court's decision" is some actual evidence; a statement from the attorney's secretary, an e-mail to somebody else saying that the defendant was never informed, or something of that sort. Even if you get that, there will be problems; why was the evidence not brought out at the first trial, is it now possible to appeal or set aside the judgement, and other questions depending on the state's legal code. But if the court had to decide "his word against hers" and there is no new evidence, there is no way to change the decision, however unfair you may think it.

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Who to believe is a judgement call, in this case one for the appellate court to make. Evidence tending to indicate who is telling the truth would help, if any is avaliable. But if neither the lawyer not the accused spoke about the matter at the tiem to a third party, thre may be no such evidence.

And once the appeals court has made a judgement, it is very unlikely to reconsider it I am afraid there may be no legal path forward for the deported person in such a case.

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